Citation Nr: 21025215 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 15-02 780 DATE: April 27, 2021 ORDER A 20 percent rating for service-connected left lower extremity radiculopathy is granted for the period from June 6, 2013 to December 12, 2014; subject to the law and regulations governing the award of monetary benefits. A rating in excess of 20 percent for service-connected left lower extremity radiculopathy is denied. A 10 rating for service-connected scars, status-post lumbar surgeries, is granted for the period from June 6, 2013 to December 12, 2014; subject to the law and regulations governing the award of monetary benefits. A rating in excess of 10 percent for service-connected scars, status post lumbar surgeries, is denied. FINDINGS OF FACT 1. Service connection was established for left lower extremity radiculopathy and scars, status-post lumbar surgeries, effective June 6, 2013; and the Veteran did not appeal that effective date. 2. For the period from June 6, 2013 to December 12, 2014, the Veteran’s service-connected left lower extremity radiculopathy more nearly approximated than not the criteria of moderate incomplete paralysis. 3. The Veteran’s service-connected left lower extremity radiculopathy has not been manifested by moderately severe incomplete paralysis at any time during the pendency of this appeal. 4. From June 6, 2013 to December 12, 2014, it is at least as likely as not the Veteran two (2) scars, status-post lumbar surgeries, have been manifested by impairment analogous to pain. 5. The Veteran’s service-connected scars, status post lumbar surgeries, have not been manifested by three (3) or more painful scars, or an unstable scar as defined by VA regulation, is not manifested by scarring covering an area or areas of at least 6 square inches (39 square centimeters), and is not manifested by disabling effects other than those that have already been compensated at the 10 percent level. CONCLUSIONS OF LAW 1. The criteria for the assignment of a 20 percent rating for service-connected left lower extremity radiculopathy for the period from June 6, 2013 to December 12, 2014 have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520. 2. The criteria for a rating in excess of 20 percent for service-connected left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.124a, Diagnostic Code 8520. 3. The criteria for the assignment of a 10 percent rating for service-connected scars, status-post lumbar surgeries, for the period from June 6, 2013 to December 12, 2014 have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, Diagnostic Code 7804. 4. The criteria for a rating in excess of 10 percent for service-connected scars, status-post lumbar surgeries, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.118, Diagnostic Codes 7801 to 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from May 1981 to June 1992. This matter is before the Board of Veterans’ Appeals (Board) from an April 2014 decision review officer (DRO) decision at the Department of Veterans Affairs (VA) Regional Office in Lincoln, Nebraska, which, in pertinent part, established service connection for a lumbar spine disability, associated radiculopathy of the left lower extremity, and residual scarring from lumbar surgeries; all effective from June 6, 2013. The Veteran appealed the initial 10 percent rating assigned for the left lower extremity radiculopathy, as well as the noncompensable (zero percent) rating for the residual scarring. A subsequent January 2015 DRO decision assigned a 10 percent rating for the service-connected lumbar scars, effective December 12, 2014. The code sheet to that decision, as well as the notification letter, reflects a 20 percent rating was also assigned for the left lower extremity effective December 12, 2014. All of these ratings were discussed in the January 2015 Statement of the Case (SOC). The Board notes that in the body of her January 2015 Form 9, the Veteran stated she was limiting the appeal to the issues of whether earlier effective dates were warranted for the 20 percent rating for the left lower extremity radiculopathy, and the 10 percent rating for the lumbar scars. However, she also checked the box to indicate she was appealing all issues listed on the SOC. Therefore, the Board will address whether higher ratings are warranted in this appeal. The Veteran also requested a Board hearing in conjunction with this appeal. Such a hearing was scheduled for April 2019, but the Veteran did not appear for that hearing; and no good cause has been shown for why she did not appear. Therefore, her hearing request is deemed withdrawn. General Legal Criteria In general, the effective date for an increased rating will be the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(1). However, the law also provides that the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date; otherwise, date of receipt of claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2). Here, the Veteran has not disagreed with the June 6, 2013 effective date for the establishment of service connection for either her left lower extremity radiculopathy or her lumbar scars. Rather, her contentions are to the effect that higher ratings are warranted for the period from June 6, 2013 to at least December 12, 2014 for these service-connected disabilities. See January 2015 Form 9. Therefore, the Board’s focus in this case is whether it is factually ascertainable that such higher rating(s) is warranted. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). As an initial matter, the Board notes the Veteran was accorded VA examinations of the service-connected left lower extremity radiculopathy and lumbar scars in April and December 2014. She has not reported either disability has increased in severity since the most recent examination. Further, while additional evidence, including medical records, have been added to the claims folder since this case was last adjudicated below via a May 2015 Supplemental SOC (SSOC), this evidence contains no pertinent findings regarding the service-connected disabilities that are the focus of this appeal. Accordingly, there is no prejudice to the Veteran by the Board proceeding with adjudication of this appeal. 1. Entitlement to an effective date earlier than December 12, 2014 for the assignment of a 20 percent rating for service-connected left lower extremity radiculopathy The Veteran's left lower extremity radiculopathy has been evaluated pursuant to the criteria found at 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under that diagnostic code, complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates the foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Incomplete paralysis of the sciatic nerve warrants a 60 percent evaluation if it is severe, with marked muscular dystrophy; a 40 percent evaluation if it is moderately severe; a 20 percent evaluation if it is moderate; and a 10 percent evaluation if it is mild. The terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board does note, for reference and illustrative purposes, that the definition for "mild" includes not very severe. WEBSTER'S II NEW COLLEGE DICTIONARY at 694 (1995). In addition, a synonym for "mild" is "slight" and definitions for "slight" include small in size, degree, or amount. Id at 1038. The definitions for "moderate" include of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions for "severe" include extremely intense. Id. at 1012. It is also noted that the term "moderately severe" indicates impairment that is considered more than "moderate," but not to the extent as to be considered "severe." The Board also acknowledges that VA's Adjudication Manual, M21-1, III.iv.4.N.4.c (November 16, 2017) discusses the terminology in 38 C.F.R. § 4.124a. The Manual indicates the following with regard to "mild": As this is the lowest level of evaluation for each nerve this is the default assigned based on the symptoms, however slight, as long as they were sufficient to support a diagnosis of the peripheral nerve impairment for service connection purposes. In general, look for a disability limited to sensory deficits that are lower graded, less persistent, or affecting a small area. A very minimal reflex or motor abnormality potentially could also be consistent with mild incomplete paralysis. The Manual indicates with regard to "moderate": Symptoms will likely be described by the claimants and medically graded as significantly disabling. In such cases a larger area in the nerve distribution may be affected by sensory symptoms. Other sign/symptom combinations that may fall into the moderate category include combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate. The Manual notes that the moderately severe evaluation level is only applicable for involvement of the sciatic nerve. This is the maximum rating for sciatic nerve neuritis not characterized by the organic changes specified in 38 C.F.R. § 4.123. Motor and/or reflex impairment (for example, weakness or diminished or hyperactive reflexes) at a grade reflecting a high level of limitation or disability is expected. Atrophy may be present. However, for marked muscular atrophy see the criteria for a severe evaluation under 38 C.F.R. § 4.124a, Diagnostic Code 8520. The Manual indicates with regard to "severe": In general, expect motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. Trophic changes may be seen in severe longstanding neuropathy cases. For the sciatic nerve (38 C.F.R. § 4.124a, DC 8520) marked muscular atrophy is expected. Even though severe incomplete paralysis cases should show findings substantially less than representative findings for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contain signs/symptoms resembling some of those expected in cases of complete paralysis of the nerve. Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain should be rated as high as severe incomplete paralysis of the nerve (38 C.F.R. § 4.123). Prior to November 2017 revisions, VA's Adjudication Procedures Manual M21-1, Part III, Subpart iv, Chapter 4, § G(4)) defined "mild" incomplete paralysis as demonstrating subjective symptoms or diminished sensation; "moderate" incomplete paralysis as featuring the absence of sensation confirmed by objective findings; and "severe" incomplete paralysis as featuring more than sensory findings (such as atrophy, weakness, and diminished reflexes). In June 2016, VA amended the M21-1 adjudication manual "to further clarify the intent of VA's policy," and the relevant portion of the M21-1 adjudication manual included the following: Important: This provision does not mean that if there is any impairment that is non-sensory (or involves a non-sensory component) such as a reflex abnormality, weakness or muscle atrophy, the disability must be evaluated as greater than moderate. Significant and widespread sensory impairment may potentially indicate the same or even more disability than a case involving a minimally reduced or increased reflex or minimally reduced strength. Further, the United States Court of Appeals for Veterans Claims (Court) held in Miller v. Shulkin, 28 Vet. App. 376, 380 (2017), that "[a]lthough the note preceding § 4.124a directs the claims adjudicator to award no more than a 20% disability rating for incomplete paralysis of a peripheral nerve where the condition is productive of wholly sensory manifestations, it does not logically follow that any claimant who also exhibits non-sensory manifestations must necessarily be rated at a higher level." The Adjudication Manual is not binding on the Board. DAV v. Sec'y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017) ("The M21-1 Manual is binding on neither the agency nor tribunals"). Nevertheless, it does provide useful guidance in defining these terms, particularly if the Veteran demonstrates impairment consistent with higher rating(s) than currently in effect. Stated another way, the Board will look to see if there are findings that would warrant a higher rating under the M2-1 provisions, but would not deny the benefit sought on appeal if those provisions are not satisfied. Initially, the Board notes that the Veteran has reported her service-connected radiculopathy has been manifested by left foot drop throughout the pendency of this case, to include VA examinations in April 2014 and December 2014. See also June 2013 Veteran’s statement; August 2014 Notice of Disagreement (NOD); January 2015 Form 9; May 2015 statement from Dr. T. L. Although the criteria for complete paralysis contemplates the foot dropping, the record does not demonstrate other impairment associated with complete paralysis. Nevertheless, it does indicate impairment that is more than small in size, degree, or amount; i.e., more than mild. The Board acknowledges that an April 2014 VA examination found the Veteran to have mild radiculopathy of the left lower extremity. The Board is not bound by that description of the VA examiner, even though it is evidence for consideration. Nevertheless, the Board finds that the symptoms and findings documented on this examination are reflective of more than mild incomplete paralysis, particularly when taking into account the other evidence of record including the Veteran’s description of problems associated with her purported foot drop. In pertinent part, at the April 2014 VA examination the Veteran reported less strength in both legs, nightly spasms both legs, and numbness to the lateral side of the left lower leg and foot. On examination, muscle strength testing was 5/5 (normal) for the left hip, knee, and ankle, but the left great toe extension was 4/5 (active movement against some resistance). Reflexes were 2+ (normal) for the left ankle, but + (hypoactive) for the left knee. Sensory exam was normal for the left upper anterior thigh and thigh knee, but decreased for the lower leg/ankle and foot/toes. In addition, the May 2015 statement from Dr. T. L. reflects since the time of the lumbar surgery in 2001, the Veteran has experienced numbness, tingling, muscle weakness and foot drop on her left side. Moreover, the statement noted pain in the left lower extremity. The Board further notes the record demonstrates the Veteran has used medication to treat her radiculopathy. See Jones v. Shinseki, 26 Vet. App. 56 (2012). The Board also reiterates the law mandates resolving all reasonable doubt in favor of the Veteran regarding degree of disability, to include the assigning the higher evaluation if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. §§ 4.3, 4.7. In light of the foregoing, the Board finds that for the period from June 6, 2013 to December 12, 2014, the Veteran’s service-connected left lower extremity radiculopathy more nearly approximated than not the criteria of moderate incomplete paralysis. Therefore, it was factually ascertainable that a 20 percent rating was warranted for this period. 2. Entitlement to a rating in excess of 20 percent for service-connected left lower extremity radiculopathy The Board further finds that a rating in excess of 20 percent is not warranted for the Veteran’s service-connected left lower extremity radiculopathy at any time during the pendency of this case, to include as a “staged” rating(s). Initially, the Board notes that the Veteran’s statements in this case, to include in the January 2015 Form 9, reflect she is satisfied with the 20 percent rating assigned for the radiculopathy. A claimant can limit his or her claim to a specific disability rating. See AB v. Brown, 6 Vet. App. 35 (1993). The Board further notes that the record does not reflect the service-connected left lower extremity radiculopathy meets or nearly approximates the criteria of moderately severe incomplete paralysis. The Board notes that the findings of the April 2014 VA examination do not reflect more than moderate incomplete paralysis; i.e., impairment that is more than of average or medium quantity, quality, or extent. Although additional impairment was noted on the December 2014 VA examination, it was also consistent with moderate incomplete paralysis. For example, the Veteran reported mild constant pain in the left lower extremity; and moderate intermittent pain, numbness, and paresthesias and/or dysesthesias. In short, the Veteran herself did not report more than moderate symptomatology. She also reported that her foot drop was more noted at the end of the day or when fatigued or tired. She walked daily on a treadmill to maintain strength in the lower extremities. Further, she did not describe any periods of complete incapacity secondary to this condition. On the December 2014 VA examination muscle strength testing was 5/5 for left knee extension and ankle plantar flexion, and 4/5 for left ankle dorsiflexion. Reflexes were 1+ for the left knee, and 0 (absent) for the left ankle. Sensory exam was decreased but not absent throughout the left lower extremity. The examiner described the condition as manifested by moderate incomplete paralysis. Moreover, both examinations found there was no muscle atrophy, and that she did not use any assistive devices due to this disability. A review of the other evidence of record, including medical treatment records and the Veteran’s statements, does not demonstrate moderate incomplete paralysis of the left lower extremity to include during flare-ups and/or but for the use of medication. For all these reasons, the Board finds the preponderance of the evidence is against a rating in excess of 20 percent for the service-connected left lower extremity radiculopathy, to include as a “staged” rating(s). To this extent, the appeal is denied. 3. Entitlement to an effective date earlier than December 12, 2014 for the assignment of a 10 percent rating for service-connected scars, status-post lumbar surgeries Amendments to the criteria for rating disabilities of the skin were published in July 2018. See Schedule for Rating Disabilities: Skin, 83 Fed. Reg. 32,592 (July 13, 2018). The amendments were made effective as of August 13, 2018, and apply to claims, such as the Veteran's, that were pending before VA as of that date, with the provision that the more favorable of the old and new criteria are to be applied. Diagnostic Code 7804 (before and after the 2018 amendments) provides a 10 percent rating for 1 or 2 scars that are unstable or painful. A 20 percent rating is warranted for 3 to 4 scars that are unstable or painful, and a 30 percent disability rating is assigned for 5 or more scars that are unstable or painful. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118. Here, the Veteran has been assigned a 10 percent rating under Diagnostic Code 7804, effective December 12, 2014, based on a finding of two painful residual scars on VA examination conducted that date. The Board acknowledges that the April 2014 VA examination found the two scars were not painful. However, the Veteran’s actions and statements in this case reflect the scars have been at least analogous to panful throughout the pendency of this case. For example, in her August 2014 NOD she reported that her surgical scar was very sensitive. She reported that she cannot have any piece of clothing touch it; and when she moved, twisted or bended the area felt like it was eing pulled and caused pain. Moreover, she described similar symptomatology on the subsequent December 2014 VA examination. The Veteran is competent to describe such symptomatology, and the Board finds her account of such symptoms to be credible. In light of the foregoing, and resolving all reasonable doubt in favor of the case, the Board finds the Veteran is entitled to a rating of at least 10 percent for the period from June 6, 2013 to December 12, 2014. 4. Entitlement to a rating in excess of 10 percent for service-connected scars, status post lumbar surgeries The Board also finds the Veteran does not warrant a rating in excess of 10 percent for her service-connected lumbar scars. As noted, the Veteran has indicated she is satisfied with the 10 percent rating for these scars. Further, the record does not reflect she meets or nearly approximates the criteria for a rating in excess of 10 percent under any of the potentially applicable Diagnostic Codes. Here, the record, including both the April 2014 and December 2014 VA examinations, reflect the Veteran has no more than two residual scars from her lumbar surgeries; and she has not contended otherwise. In other words, she does not have three or more painful scars. The Board further notes that both the April 2014 and December 2014 VA examinations found the scars were not unstable. As noted, VA regulation defines an unstable scar as one where, for any reason, there is frequent loss of covering of the skin over the scar. No such symptomatology is otherwise demonstrated by the evidence of record, to include the medical treatment records and the Veteran’s statements in this case. In light of the foregoing, a rating in excess of 10 percent is not warranted under Diagnostic Code 7804. Regarding other potentially applicable criteria for evaluating scars, the Board notes that Diagnostic Code 7800 applies to scars of the head, face, or neck. Thus, this Diagnostic Code is not for consideration in this case. Diagnostic Codes 7801 and 7802 (before and after the 2018 amendments) apply to scars other than the head, face, or neck. As such, they are at least potentially applicable. However, the Veteran's scars would not warrant even a 10 percent under either of these Codes. See 38 C.F.R. § 4.31. In pertinent part, Diagnostic Code 7801 provides for a 10 percent rating for scarring that covers an area or areas of at least 6 square inches (39 square centimeters), while Diagnostic Code 7802 provides a single 10 percent rating for scarring covering an area or areas of 144 square inches (929 square centimeters) or more. Here, the April 2014 VA examination stated that the total area of all related scars was greater than 39 square cm (6 square inches). The examination also noted that the scars were linear, one scar measured 5 cm, and that the other scar measured 6 cm. The December 2014 VA examination found that one scar measured 4 cm, and the other scar measured 7 cm. Neither these examinations nor any of the other evidence of record reflects that the Veteran's service-connected lumbar scars cover an area or areas to the extent necessary for even a compensable rating under these Diagnostic Codes. Diagnostic Code 7803 was eliminated effective October 23, 2008, which is clearly prior to the June 2013 effective date for the establishment of service connection. As such, that Diagnostic Code is not for consideration in this case. Diagnostic Code 7805 provides that other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-7804 under an appropriate diagnostic code. 38 C.F.R. § 4.118. Here, the record does not reflect either of the lumbar scars were manifested is not manifested by disabling effects other than those that have already been compensated at the 10 percent level (i.e., the pain, discomfort, pulling feeling, and problems wearing clothes). No such disabling effects were noted on the April 2014 VA examination. The December 2014 VA examination specifically found the scars did not result in limitation of function. No such impairment is demonstrated by the other evidence of record, including medical treatment records and the Veteran’s statements. The Board also notes the Veteran is already separately evaluated for the underlying lumbar spine disability. In light of the foregoing, the Board finds the preponderance of the evidence is against a rating in excess of 10 percent for the service-connected lumbar scars, to include as a “staged” rating(s). To this extent, the appeal is denied. R. Costello Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board John Kitlas, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.